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June 11, 2003
Taking care of your own?
Stephen M. Reid, Ph.D., CFO, MIFireE

How many of us have read something like the following description?

It’s 2:00 a.m. on a cold and dreary Sunday morning in early March.  The tones have just sounded for an emergency only blocks away from the fire station.  Engine One responds and arrives within minutes to find a working fire in a two-story residential structure of balloon-frame construction.  Moments later the chief arrives and assumes command.   More firefighting units arrive and assignments are given. The tasks of rescue and extinguishment are underway.  This sounds a lot like the every day “Bread and Butter” operation.  But...

Further into the fire, while evaluating the firefighting efforts, a report comes in that a firefighter is missing.  Immediately, command performs a Personnel Accountability Report (PAR), implements the departmental MAYDAY procedures and deploys the Rapid Intervention Team.  An exhaustive search is conducted and the missing firefighter is located, however, resuscitation attempts prove to be nothing more than an exercise in futility.

Whether the above is related to a fire situation, a training accident, or an apparatus incident, stories such as these occur all too often within the fire service.  From 1992 through 2002, 1047 firefighters died in the line of duty, exclusive of the 347 who died in the line of duty at the World Trade Center on September 11, 2001.  So far in 2003, 37 firefighters have died in the line of duty.

The following table gives an overview of the number of on-duty deaths and injuries that occurred from 1991 to 2002.
FDNY 2001 fatalities are excluded.
   Year   Fireground deaths Fireground Injuries Total Injuries
1992  75 52,290  97,700
1993  77 52,885  101,500
1994 104  52,875 95,400
1995  96  50,640  94,500
1996  95  45,725  87,150
1997 94 40,920 85,400
1998  91  43,080  87,500
1999  112   45,500  88,500
2000  102  43,065  84,550
2001  102  41,395  82,250
2002  99  N/A  N/A
(source USFA)
Now comes the dreadful task of honoring one of our own.  It will be ceremonious with the draped fire truck, the scores of firefighters lined up in their Class A uniforms and the playing of the bag pipes.  However, did the firefighter properly plan for such an event?  Probably not, as 80% of the firefighters who have made the supreme sacrifice failed to plan by executing a will or a living trust.  You ask, “Why do I need a will?  I know what I’m doing and nothing will happen to me.”  Unfortunately, that’s all the more reason to protect your loved ones.

What is a will?  What is probate?  What is an executor/executrix?  What is a living trust?  What is a living will?  What are powers of attorney? 

Some quick basic research on the internet provided all of the answers to the above questions.

WILL

A will is a person’s expressed intention of what should be done with their property after they die.  Basically, there are three types of wills:

A holographic will is handwritten, without witnesses.  Few states recognize holographic wills, and only in very particular circumstances.

An oral will, also called a “nuncupative will,” is only recognized in a few states and usually only in compelling situations such as the impending death of a soldier in wartime.

A self-proving will is one that has been witnessed and signed with all of the formalities required by state law.  A self-proving will saves a great deal of time and effort when it turns out that one or more witnesses can’t be located or are themselves deceased.

You definitely need a will if you have children.  Even if you don’t, you probably need a will.  Each state has formal requirements for preparing and signing a will.

Generally:

  • You must declare that the document you are signing is your will
  • Your signature must be witnessed by at least two or three witnesses, who must sign the will in each other’s presence
  •  Each state has specific requirements for how your signature and the signatures of the witnesses must be worded.


Since most everyone dies possessing property, most everyone needs a will.  State law decides what happens to property in the estate of a person who dies without a will, intestate.  State law attempts to distribute the property according to what most people want, but it doesn’t always work that way.  The default plan normally distributes property to relatives.  Commonly, the spouse and children of the decedent will take the property.  If there is no spouse and/or no children, the decedent’s parents will take property, then siblings, grandparents, and children of the grandparents.  If no close relation can be found, the property will eventually belong to the state.

PROBATE

As part of the probate process, the creditors of the decedent get first shot at the estate property, after certain allowances for a spouse and children. Any property that is transferred by will is subject to probate, which is the legal process of verifying your will through the courts.  Probate can be slow and costly.  That’s why many people choose to create a living trust to convey most of their property to their loved ones.  Forming a living trust makes sense for just about everyone, but it’s important to realize that it does not prevent probate - it only speeds up the probate process.  You still need a will that names an executor for your estate and a guardian for any minor children.  All wills must go through probate.  Period!

EXECUTOR/EXECUTRIX

The person who represents the estate is called several different things, depending on state law.  Traditionally, the person appointed by a will to represent the estate is called the executor (or executrix, if female).  A person appointed by a court to represent the estate of a person who doesn’t have a will is called a personal representative or administrator.

The executor or personal representative is charged with following state law in wrapping-up the decedent’s affairs.  This includes:
 

  • Giving the proper notices to the proper parties
  • Collecting all the decedents’ property
  • Receiving claims against the estate
  • Paying just claims and disputing others
  • Distributing the estate property according to the will or state law.


Along the way there may be other necessary actions, like selling estate property to cover debts or allow for proper distribution.  There is usually a waiting period after the will is filed before the executor can begin distributing the assets to those listed in the will.  This time allows creditors to come forward to declare debts that may not be known to the executor simply by going through the decedent’s paperwork.

The executor is entitled to reasonable compensation for his or her services, often limited to a certain percentage of the property in the probate estate.  The executor’s fee is usually listed on the final report and must be approved by the probate court.  Interested parties can object if the fee appears to be excessive, considering the time and effort expended by the executor.

LIVING TRUST

Earlier I mentioned the term “Living Trust.”  A “trust” is a creature of law in which one party - called the “trustee” - has legal ownership of property transferred to him/her by the person making the trust (usually called the “grantor”).  The trust assets are invested and/or managed for the benefit of one or more beneficiaries.  Sometimes the grantor can also be a beneficiary of the trust, but can’t be the only beneficiary.

Trusts can be “living” - established during the grantor’s lifetime - or “testamentary” - established in a will.
Trusts that can be terminated or modified at any time by the grantor for any reason are called “revocable.”  If a trust is called “irrevocable,” it can’t be changed or terminated under any circumstances.

In order to function, a trust must have assets formally transferred to the trustee, with this title used in the documents of ownership.  Even when husband and wife serve as their own trustees, real estate deeds and financial accounts must be re-titled in order to be owned by the trust.

LIVING WILL

Next, one must consider a “Living Will” which is vastly different from a “Living Trust.”  By writing a living will, sometimes called “health care directives,” you are basically exercising your right to refuse treatment that would artificially prolong your life in the event you become incapacitated.  These are for adults of all ages, not just the elderly.  Some of the most famous court cases about the right to die have involved those in the 20s.

There are good reasons to write down your wishes about end-of-life medical care:

  • You might be too sick to express yourself when the time comes
  • Your family might disagree about what to do, which leaves doctors in a tough spot and more likely to keep you on life support
  • You can help your family with the really tough decision of whether or not to take you off life support
  • Living wills often include legal protection for doctors and hospitals, so they don’t get sued for honoring your request.
Different states have different rules for what living wills should cover, but they all allow you to decline aggressive life support if you are close to death, without affecting your right to get pain medicine or other “comfort care.”

Nor is refusing medical treatment considered suicide; it is not illegal or immoral to let nature take its course.

Once your living will is signed, give a copy of it to:

  • Your family physician
  • Family members
  • Consider giving a copy to your minister or a member of your religious community, and to close friends as well
  • The hospital you’re likely to use.  You can mail it to their medical record’s department, with a cover letter that gives your date of birth and your Social Security Number.  Verify that they have received the document and have a record of it.
  • If you are in a nursing home or are seeing a medical specialist for a serious illness, they should get a copy, too.


There is no need to update a living will.  However, it is a good idea to check in a few years to see if your state’s form has changed.  It might be improved later, so you would want to take advantage of these changes.  Also, by signing a new one, it shows you haven’t changed your mind.

POWERS OF ATTORNEY

Coupled with a will and an advance medical directive, the durable power of attorney is for many people a superior alternative to the simple living trust in planning for disability or incompetence.  These documents are more familiar to folks than the concept of a “trust,” and their total cost is less than to prepare a trust.

A power of attorney is a document in which you, as the “principal,” give authority to your “attorney-in-fact” (who need not be a lawyer) to act on your behalf.  The scope of the power of attorney can be quite limited - for example, the purchase of a single real estate investment - or almost unlimited.  You can even grant the power to make gifts of your property, but not to make a will.

All powers of attorney end at the death of the principal.

A limited power of attorney can make business or financial transactions much easier, simply by allowing a busy or absentee party to send somebody to act in his or her place.

A durable power of attorney allows you to delegate broad authority over your personal financial affairs, even - especially - when you become disabled or incompetent.

An alternative to a durable power of attorney is the springing power of attorney, which doesn’t become effective until you are disabled.

In addition to a wide-ranging variety of “standard” powers, discuss with your lawyer including the following useful, but often overlooked, provisions in your power of attorney:
 

  • Power to handle tax matters and deal with the IRS
  • Power to handle retirement accounts and investments
  • A compensation clause detailing how much your attorney-in-fact should be paid and from where the payment should come
  • Power to make gifts
  • Power to create and amend trusts for your benefit.
  • A will should be kept in a safe place such as a bank safe deposit box or a fireproof safe at home, where it can be easily located after your death. 
Should you keep your will current? Yes, you should update your will whenever:
  • You marry or divorce
  • You give birth to or adopt a child
  • When a family member or other beneficiary of your estate dies
  • When someone you’ve named as an executor, trustee or guardian is no longer able to fulfill that role
  • When you decide to change an executor, trustee or guardian
  • When you want to change the way your property will be distributed
  • When you move to another state
  • When you net worth increases dramatically.
In order to keep your will current, you may revise it in one of the following manners:
  • Making minor changes in what is called a “codicil,” a formal amendment to the will
  •  Preparing an entirely new will and thereby revoking the prior one.


CONCLUSION

The above information is an overview of a few of the various aspects of planning and taking care of your own and is not intended to be legal advice.  It merely conveys general information related to legal issues commonly encountered.

Although making a will is a sobering experience, your loved ones and friends will thank you for being so organized and thoughtful ahead of time.  For further information, the writer suggests that you contact an attorney who specializes in this area of law for more in-depth guidance. 

Additionally, some fire departments have a legal plan which includes the writing of your will as part of their compensation package.  Oftentimes, these services are provided for a reduced fee or for free, depending on the plan.  Or you can write your own.  Software packages are available from various sources for less than $50.

Time is of the essence.  Do yourself and your loved ones a favor - take some time and have your will written today!

About the author: Stephen M. Reid, Ph.D., CFO, MIFireE has more than 35 years of experience in the fire service having served in both a career and volunteer environment. He began his career in a volunteer department and served on the management staff in Montgomery County, MD. Chief Reid recently retired as the Director of Emergency Medical Services with the District of Columbia Fire/EMS Department in Washington, D.C. which serves a residential population of more than 525,000 and a daytime population of 1.5 million. 

     Chief Reid earned a Doctor of Philosophy degree in Fire Service Administration from Western States University for Professional Studies, a Master of Administrative Science degree in Management from The Johns Hopkins University, and a Bachelor of Science degree in Fire Administration from The University of the District of Columbia.

     Dr. Reid has extensive experience in fire protection and fire ground operations, fire prevention and code enforcement, emergency medical services, hazardous materials, national fire data, public fire education, personnel management, training, budgeting, apparatus maintenance, purchasing, planning, and technical writing. His scope of expertise includes both operations and administration.

     As president of Stephen M. Reid and Associates, Inc., his firm offers strategic analysis and planning as well as customized training programs. Emergency service agencies, associations and private industry are the target markets that focus on the following areas: Fire/EMS Operations, Change Management, Master Planning, Incident Command, Fire Station Design, Fire Incident Reporting, Contingency Planning, and Public Information. He brings a strong commitment to service delivery and participation at all levels in his approach.

     Dr. Reid has served as an adjunct instructor at The University of the District of Columbia and is currently an instructor with Command School, Inc. and their famous Abbottville fire scenario simulator.

     Dr. Reid is listed in Who’s Who in Public Service and is a Member of the Institution of Fire Engineers, MIFireE, Great Britain. Additionally, he has received the prestigious Chief Fire Officer Designation from the Commission on Chief Fire Officer Designation which is in association with the International Association of Fire Chiefs. Dr. Reid also belongs to the American Management Association, Delta Sigma Pi Fraternity, International Association of Fire Chiefs, National Fire Academy Alumni Association, National Fire Protection Association, National Volunteer Fire Council, Society for Fire Protection Engineers and the World Safety Organization.

     Dr. Reid currently resides in Myersville, MD.